Judging the Charter
The Charter in judicial practise with a special focus on the case of protection of refugees and asylum seekers
Reiterates the need for a strong link to EU law.
Ms Nisttahuz Poclava, of Bolivian nationality, worked as a cook for the hotel company Taberna del Marqués in Spain. Since January 2013, she was employed on a full-time ‘employment contract of indefinite duration to support entrepreneurs’ provided for under Spanish law.The contract entailed a probationary period of one year.
In May 2013, Ms. Poclava was fired because she had not successfully completed her probationary period. Ms. Poclava brought an action against her employer before the Social Court No 23 of Madrid seeking a declaration that her dismissal was unfair and an order directing her employer either to reinstate her or to pay compensation.
The referring Court asked the CJEU: “Is national legislation under which employment contracts of indefinite duration to support entrepreneurs are made subject to a one-year probationary period, during which the employee may freely be dismissed, contrary to EU law, and is it compatible with the fundamental right guaranteed by Article 30 of the Charter?” (para. 26)
The CJEU recalled that the Charter apply only where the situation is governed by EU law, but not outside such situations.
The Court found that EU directives and framework agreements merely regulate fixed-term contracts of employments where there is a specified end of the contract determined by objective factors. The contract of Ms. Poclava, however, was for an indefinite period and therefore not a fixed-term contract regulated by EU legislation (paras. 31-38).
The CJEU concluded that the situation at issue did not fall within the scope of other EU law/involve the implementation of EU law.